Thursday, September 23, 2004

Courts Under Siege

As I've written HERE, HERE and HERE, the courts have provided a welcome voice of reason in these times of Republican dominance of the legislative agenda. And turns out, the Republicans don't like it one bit.

Last October, Jeb Bush rushed "Terri's Law" through the Florida state legislature in order to keep a severely brain-damaged woman, Terri Schiavo, alive in spite of a court ruling that she be taken off life support (ie, her feeding tube removed) in keeping with the woman's husband's wishes. He said it's what she would have wanted while her parents pleaded with Governor Bush to take action to keep her alive. Once Jeb rushed the law through the legislature, he promptly used it to reinsert her feeding tube and she's been living like that ever since. Today, the Florida State Supreme Court ruled that Terri's Law actually violates the separation of powers between the judicial branch and the legislative and executive branches.

"It is without question an invasion of the authority of the judicial branch for the Legislature to pass a law that allows the executive branch to interfere with the final judicial determination in a case," Chief Justice Barbara Pariente wrote for the court. "That is precisely what occurred here."

Limiting the power of the courts is precisely what the proposed Federal Marriage Amendment was all about, as well. Conservatives see court rulings such as the Massachusetts State Supreme Court decision that a ban on same-sex marriage is unconstitutional as "activist judges legislating from the bench" because the court used its ruling to instruct the legislature to act to remedy the situation. To thwart this, conservatives' only recourse is to undermine the courts by amending constitutions to state that marriage is only between a man and a woman so that courts by definition can't rule such bans unconstitutional. So, first, they tried at the federal level with the Federal Marriage Amendment, but that failed to even come up for an up and down vote due to lack of support. And now they're trying all over the country to amend state constitutions to ban same sex marriage. Such a ban passed in Louisiana just this past weekend. Several states have it on the November ballot as a voter initiative, which accomplishes another goal: motivating the base to get to the polls in November increasing turn out for George W. Bush.

Today, Republicans in the House pushed through a vote on yet another piece of legislation, The Pledge Protection Act, that seeks to both undermine the power of the courts and hurt Democrats in November.

The bill, which the House approved, 247-173, would prohibit federal courts, including the Supreme Court, from hearing cases involving the Pledge [of Allegiance] and its recitation and would prevent federal courts from striking the words "under God" from the pledge.

The legislation has little chance of advancing in the Senate this year, but it laid down another marker for politicians seeking to differentiate themselves from their election opponents on volatile social issues of the day. Other "wedge" issues that have come up or may arise before the election include gay marriage and flag-burning.

Indeed, 166 of the 173 nay votes were from Democrats but to minimize negative fallout, 34 Democrats voted with the Republicans. (Of these 34, the vast majority are from red states such as Texas, Tennessee, South Dakota and Georgia and swing states such as Iowa, West Virginia, Minnesota and Missouri.)

Clearly, this is another front in the culture war that wages on between Democrats and Republicans, between those that would like to keep church and state separate and those that would seek to blur the line, between those that feel that the constitution is the basis for the laws that govern our society and those that believe it should be the Bible. Of the many things that this election is about, this is truly one of the most important.